Carpenter's District Council of Southern Colorado

CARPENTER'S DISTRICT COUNCIL OF SOUTHERN COLORADO 613 Carpenter's District Council of Southern Colorado and Its Local Union 362 (Pace Construction Com- pany) and Southern Colorado Prestress Company. Carpenter's District Council of Southern Colorado and its Local Union 362 and Southern Colorado Prestress Company. Cases 27-CC-513 and 27-CB-779 January 28, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND' PENELLO On June 28, 1974, Administrative Law Judge Rich- ard J. Boyce issued the attached Decision in this pro- ceeding. Thereafter, Respondents filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. On January 27, 1975, the Board issued an Order Reopening Rec- ord and Remanding Proceeding to Regional Director for Further Hearing for the purpose of taking further evidence relating to an 8(b)(1)(B) allegation in the complaint. On May 7, 1975, the Administrative Law Judge issued the attached Supplemental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision and Supplemental Decision in light of the exceptions and briefs and has decided to af- firm the rulings, findings, and conclusions of the Ad- ministrative Law Judge and to adopt his recom- mended Order.' Like the Administrative Law Judge, we find that the Respondent Unions' picket line was for the pur- pose of inducing neutral employees not to perform services for their neutral employer and constituted coercion of that employer, thereby violating Section 8(b)(4)(i) and (ii)(B) of the Act. Notwithstanding the fact that the picketing superficially satisfied the stan- dards described in Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 (1950),,it is apparent from the fines thereafter imposed upon a supervisor and an employee of Prestress, the neutral employer, for crossing that picket line that the Re- spondents were in fact, attempting to induce the Prestress personnel to cease work to force Prestress to cease dealing with Pace; if this were not so, there would be'no basis for the fines. t In the absence of exceptions thereto, the Board adopts pro forma the Supplemental Decision of the Administrative Law Judge With respect to Building and Construction Trades Council of New Orleans, AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319 (1965), our dissenting colleague is relying solely on his own views as stated in his dissent in that decision, which were directly contrary to those of the Supreme Court in N.L.R.B. v. Denver Building & Construction Trades Council [Gould & Priesner], 341 U.S. 675 (1951), which is still the law of the land. We adhere to the majority view in Markwell and Hartz and hold that in a dispute with the general contractor at a construction site the existing rules concerning common situs picketing are applicable; the "fact that picketing of a neutral gate at premises of a struck employer, may in proper cir- cumstances be lawful primary action, does not re- quire a like finding when a labor organization applies direct pressure upon secondary employers engaged on a common situs." (Markwell and Hartz, Inc., supra at 325, emphasis in original.) ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondents Carpenter's District Council of Southern Colorado and its Local Union 362, Pueblo, Colorado, their officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order. MEMBER FANNING, dissenting and concurring: I dissent from the conclusion of the majority that Respondents, by picketing the Grand Avenue project on May 1 and 2, and by fining Prestress' foreman, Stanko, and its employee, Turner, violated Section 8(b)(4)(B) of the Act, or that they violated Section 8(b)(1)(A) by fining Turner. Pace Construction Co. is a general contractor en- gaged in erecting a building known as the Grand Av- enue project. Southern Colorado Prestress Company has a subcontractor relationship with Pace to install the concrete panels which form the shell of the build- ing. On March 21, 1973,2 Pace employees staked out corners for exacavation at the project, and the exca- vation was later carried out by another subcontrac- tor. Pace personnel next worked for about an hour at the project on April 4, setting corners for footings and, on April 8, they worked briefly at the project erecting an advertising sign. Between April 8 and May 4, Pace employees did not work at the project, and Pace had no materials, tools, or equipment stored there. 2 All dates are in 1973, except where otherwise noted 222 NLRB No. 104 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 27, Respondents' pickets first appeared at the project. Respondents were attempting to se- cure a labor agreement with Pace, and admittedly had no dispute with any other employer at the proj- ect. The picket signs stated that Pace had no agree- ment with the Carpenters. On May 4, Pace resumed work at the project, and remained there more or less continuously until the completion of the project (around- September 28). In the meantime, Pace and Respondents had reached an agreement, and the pickets were 'removed from the project on May 16. The picketing alleged to be unlawful herein took place on May I and 2, when Prestress employees were erecting the panels. During these 2 days, there were no Pace personnel at the project, save two or three visits on both May 1 and 2 by Leonard Pace to observe the progress of the work, each visit lasting 10 to 15 minutes. On May 1, a picket remained at the site from 8 a.m. until 4:30 p.m., while Prestress employees were working. Although no words were spoken between the- employees and the picket, Bernard Robinson, a business representative of Respondent Council, as well as financial secretary of Respondent Local, and another person spent about 30 minutes at the project, taking pictures of the Prestress crew at work and of the equipment. On May 2, Robinson picketed for about 1-1/4 hours in the morning, until he was re- lieved by the regular picket. At the time Robinson was picketing, Prestress' foreman, Stanko, a member of the Carpenters, asked Robinson what the problem was. Robinson replied that he could not talk to him while picketing, but that he would meet with Stanko at the union hall at 4:30 p.m. if Stanko liked. Stanko did not meet with him. On June 13, Robinson filed charges with Respon- dent Council alleging that Prestress' foreman, Stan- ko, and its employee, Turner (also a Carpenters member), had violated Respondent Council's consti- tution by crossing the picket line set up against Pace. These charges were served on Stanko and Turner on June 26, and trial was set for July 28. By letters dated November 27, Respondent Council informed Stanko and Turner that each had been found guilty, and fined $50. Although the Administrative Law Judge found that the Moore Dry Dock 3 criteria for common situs picketing had been met, citing other evidence, in- cluding Robinson's picketing on May 2, the taking of pictures of Prestress' crew and equipment, the fining of Stanko and Turner, and the fact that Respondents did not ask Pace to sign an agreement before picket- ing, he found that the object of the picketing was to enmesh neutral employers and employees in their dispute with. Pace. He thus found the picketing on May I and 2 to be in violation of Section 8(b)(4)(i} and (ii)(B). He further found that the fining of Stan- ko and Turner for crossing the picket line was in violation of Section 8(b)(4)(i) and" (ii)(B), regardless of the fact that-the disciplinary action was initiated after Prestress had fulfilled its contract with Pace, as the "cease doing business" element of Section 8(b)(4)(b) embraces prospective, as well as existing, business relationships. As the fining of Turner was in furtherance of Respondents' unlawful secondary boycott activities, the Administrative Law Judge also found it to be in violation of Section 8(b)(1)(A). I agree with the Administrative Law Judge that Respondents' actions met with'the Moore Dry Dock standards. This being so, I would dismiss the com- plaint herein. - My reasons for making such a finding under cir- cumstances such as those found herein are fully ex- plicated in the dissent in Markwell & Hartz, Inc.,4 which I joined. As iterated in that dissent, where the primary object of-a'union's picketing is the general contractor on a construction project, and a subcon- tractor is performing work on the project which is directly related to the normal operations of the gen- eral contractor, the union has a right to appeal di- rectly to the employees of the subcontractor to honor the picket line. In the instant case, I find that the work performed by Prestress is, by reason of that Company's subcontractual relationship with Pace, a general contractor, directly related to Pace's normal business operation; and, accordingly that the Car- penters had the right to appeal directly to the em- ployees of Prestress to honor the picket line at the Pace project. This being so, Respondent's picketing on May 1 and 2, and the fining of Stanko and Turner in furtherance of their appeal to honor the picket line, do not constitute violations of Section 8(b)(4)(B) or 8(b)(1)(A) of the Act. Accordingly, I would dismiss the complaint in its entirety.' 3 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 (1950). 4 155 NLRB 319, 330 (1965), see also the dissent in Local 252, Sheet Metal Workers' International Association, AFL-CIO (S L Miller, Inc), 166 NLRB 262, 264 (1967) 5 1 concur in the pro forma adoption of the Administrative Law Judge's Supplemental Decision DECISION STATEMENT OF THE CASE . RICHARD J. BOYCE, Administrative Law Judge: This mat- ter was heard before me in Pueblo, Colorado, on April 30 CARPENTER'S DISTRICT COUNCIL OF SOUTHERN COLORADO 615 and May 1, 1974. The charge in Case 27-CC-513 was filed July 20, 1973, by Southern Colorado Prestress Company (herein called Prestress). That in Case 27-CB-779 was filed by Prestress July 27, 1973, and amended January 11, 1974. The consolidated complaint issued October 23, 1973, was amended November 8 and during the hearing, and alleges that Carpenters District Council of Southern Colorado and its Local Union No. 362 (herein jointly called Respon- dents, and severally called Respondent Council and Re- spondent Local) have violated Section 8(b)(1)(A) and (B) and 8(b)(4)(B) of the National Labor Relations Act, as amended. The parties were given opportunity at the hearing to in- troduce relevant evidence, examine and cross-examine wit- nesses, and argue orally. Briefs were filed for the General Counsel, Respondent, and Prestress. 1. ISSUES The issues are whether one or both of Respondents, by picketing the so-called Grand Avenue project on May 1 and 2, 1973, and thereafter prosecuting internal discipli- nary proceedings against two members, Lawrence Stanko and Paul Turner, both employed by Prestress, for working behind the picket line, violated Section 8(b)(1)(A) and (B) and 8(b)(4)(B) of the Act. II. JURISDICTION The conduct in question arose out of the construction of an office building on Grand Avenue in Pueblo, Colorado. The general contractor on the project, and the primary dis- putant as that term is used in the context of Section 8(b)(4)(B), was Pace Construction Company (herein called Pace). Prestress, a neutral to the dispute between Pace and Respondents, was a sub-contractor on the Grand Avenue project, responsible- for installing precast concrete panels comprising the outer shell of the building. Pace is headquartered in Pueblo, Colorado, engaged in general construction contracting. The value of its contract on the Grand Avenue project was $95,000. In the year be- fore hearing, Pace purchased $90,000 in materials and sup- plies from King Lumber Co., of Pueblo, approximately $67,500 of which had come to King Lumber directly from outside Colorado. Prestress is a Colorado corporation headquartered in Colorado Springs, engaged in the manufacture and sale of concrete building materials, and in the erection of struc- tures made from those materials. The value of its subcon- tract on the Grand Avenue project was $18,000. Prestress annually ships to and receives from points directly outside Colorado goods and materials valued in excess of $50,000. Both Pace and Prestress are persons engaged in and af- fecting commerce within the meaning of Sections 2(1), (6), and (7) and 8(b)(4)(B) of the Act. Prestress in addition is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7). tions within the meaning of Section 2(5) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence Work began on the Grand Avenue project March 21, 1973,! when Leonard Pace, who is the president of Pace, and a Pace employee staked out corners for purposes of excavation. This took about an hour. Excavation was done by a subcontractor sometime between March 21 and April 4. Pace personnel next worked on the site April 4, when Leonard Pace and three employees set the corners for pur- poses of footings. This likewise took about an hour. Foot- ings were poured by a subcontractor between April 4 and about April 8. Pace personnel next worked on the site about April 8, installing an advertising sign identifying Pace as the general contractor. This took a matter of min- utes. Pace did not again do work on the site until Prestress had completed its subcontract. Prestress fulfilled its contract to erect the concrete shell of the building on May 1 and 2. To accomplish this, the Prestress crew worked from 6:30 a.m. to 5:30 p.m. on May 1, and from 6 a.m. to 9:30 p.m. on May 2. Shortly before, working 8-hour days on a nearly identical Pace project in Pueblo (the Main Street project), Prestress required 3-1/2 days. Other than two or three visits to the project by Leo- nard Pace on both May 1 and 2, each visit lasting 10, to 15 minutes, there were no Pace personnel on the site either of those days. Nor were there,-Pace tools, materials, or proper- ty of any kind. The techniques used by Prestress are such that it would not have been feasible for Pace or any other contractor to have attempted work on the project while Prestress was there. Pace resumed'work on the project May 4, when its em- ployees grouted and caulked the concrete panels of the outer shell as a weatherproofing measure. Pace remained at the site more or less continuously thereafter, doing the var- ious things necessary to convert,a hollow shell into a fin- ished building. The project was completed about Septem- ber 28. Carpenter pickets appeared at both the Grand Avenue and Main Street projects April 27. They remained at both sites until May 16, when an accommodation was reached between Leonard Pace and Bernard Robinson, a business representative of Respondent Council as well as the finan- cial secretary of Respondent Local. The decision to picket had been made by Robinson, with the concurrence of the president of Respondent Council. The lone picketer at the Grand Avenue project was paid from the funds of Respon- dent Local, which had been allocated by the local's execu- tive committee.2 The picket sign at the Grand Avenue proj- ect carried this legend: "Pace Construction Co. does not have an agreement with Carpenters Union." The,purpose of the picketing, according to Robinson, was to secure a labor-agreement with Pace. Robinson admitted that Re- III. LABOR ORGANIZATIONS Respondents jointly and severally are labor organiza- 1 All dates are 1973 'These circumstances compel the conclusion, despite Respondents' asser- tions that Respondent Local had no part in it, that the picketing was anoint venture of Respondent Local and Respondent Council. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondents had no dispute with Prestress. There was no communication between Respondents and Pace before picketing began.3 Prestress had completed its work on the Main Street pro- ject before the April 27 onset of picketing. On May 1, Prestress' first day on the Grand Avenue project, picket- ing began at 8 a.m.-about 90 minutes after Prestress had started-continuing until 4:30 p.m. No words were ex- changed between Prestress personnel and the picketer. On May 2, Robinson himself began picketing at about 6:45 a.m.-45 minutes after Prestress had started. Robinson was supplanted by the regular picketer at 8 a.m., who remained until 4:30 p.m. As previously mentioned, Prestress stayed on the site May 1 until 5:30 p.m. and May 2 until comple- tion at 9:30 p.m. While Robinson was picketing May 2, Lawrence Stanko, Prestress' erection foreman on the job, asked him what the problem was. Robinson replied that he could not talk to Stanko while carrying a picket sign, but that, if Stanko wanted to talk to him, he should meet Rob- inson at the union hall that evening at 4:30. Stanko did not go to the hall, and there was no other communication be- tween Prestress personnel and Respondents at the time. Two of those working for Prestress on the Grand Ave- nue project May 1 and 2 were members of Respondent Local. One, Erection Foreman Stanko, had power to hire and fire, so was a supervisor within the meaning of the Act. The other, Paul Turner, a welder/carpenter, was an em- ployee. The morning of May 1, Robinson and a compan- ion spent about 30 minutes at the site, taking pictures as evidence that Stanko and Turner were working behind a picket line. Thepictures depict the picketer standing near a Prestress crane, and the crew at work. On June 13, Robinson filed charges with Respondent Council alleging that Stanko and Turner had violated sec- tion 55, paragraph A-10, of Respondents' constitution, which prohibits members from working behind a picket line authorized by any subordinate body of the United Brotherhood of Carpenters. The charges stated, among other things, that "a Carpenter picket had been placed on this project . . . protesting the General Contractor, Pace Const. Co." and that Stanko and Turner were "employed by Southern Colorado Prestress, a sub-contractor." By let- ters dated June 26, Respondent Council served the charges on Stanko and Turner. The letters set trial for July 28 at the hall of Respondent Local in Pueblo. By letters dated November 27, Respondent Council informed Stanko and Turner that each had been' found "guilty as charged" and fined $50, remittance to be made to Respondent Council. The parties are in disagreement whether there was a no- 3 A Laborers local had been picketing the Grand Avenue project, protest- ing the lack of an agreement with Pace, for 2 or 3 weeks before April 27 That picketing ceased when the Carpenters began. Council for the General Counsel, in his brief, argues among other things that Respondents' picketing was in furtherance of the Laborers dispute with Pace-indeed, that Respon- dents "had no dispute with Pace" on the critical dates-and therefore that Respondents' picketing "cannot constitute a legitimate primary objective " While the record suggests some degree of coordination between the Labor- ers and Respondents, there is no warrant for concluding that Respondents' role was purely a sympathetic one Moreover, 5(a) of the General Counsel's complaint alleges that "at all times material herein, Respondent has had a labor dispute with Pace." 4 The picketer apparently stood beside the crane solely for the purposes of the pictures, generally walking the outer perimeter of the premises. strike agreement between Prestress and Respondents at the critical time, the General Counsel and Prestress contending that there was, Respondents that there was not. R. G. Tal- ley, Prestress's general manager, testified of three labor agreements binding between Prestress and Respondents. One, a one-page document dated November 1, 1972, and without expiration date, contains this clause: There shall be no strike or lockout pending any dis- pute being investigated and all peaceable means taken to bring about a settlement. This document names as parties Prestress' parent compa- ity, Prestressed Concrete of Colorado, Inc., and Respon- dents' parent organization, United Brotherhood of Carpen- ters and Joiners of America. It was executed by a vice president of the parent company and the general president of the United Brotherhood. It nowhere mentions Prestress, nor is there evidence otherwise, either inside or outside the document, apart from Talley's witness-stand opinion, to suggest that the parent company bound anyone but itself by signing it. Talley had nothing to do with its negotiation. A second agreement binding between Prestress and Re- spondents, in Talley's opinion, is a form document entitled "Carpenters District Council of Southern Colorado Build- ing Agreement," and purporting to be effective from May 1, 1972, to April 30, 1975. This document, under article XIII, Contractual Disputes, contains these provisions: Section 4-The Board of Adjustment is empowered to hear and decide disputes growing out of the inter- pretation and application of this agreement and shall not engage in negotiations for changes or amendments to this Agreement, wage rates, hours of work or work- ing conditions. Section 5-The parties agree there shall be no strike, work stoppage, slowdown, lockout or other in- terruption of the continuity of the work in progress during the life of this Agreement unless a party refuses to abide by or to implement the majority decision of the Board of Adjustment. This document not only is unsigned, but nowhere identifies any employer party to it. The tenor of Talley's testimony is that the one-page agreement, above, incorporates it by ref- erence. The incorporating language, in his opinion, is this: The Company agrees to recognize the jurisdictional claims of the United Brotherhood of Carpenters and Joiners of America, to work the hours, pay the wages and fringe benefits and observe the lawful working conditions (including lawful union shop agreements) established' or agreed upon by the United Brother- hood of Carpenters and Joiners of America and the recognized agency of the locality in which any work of the Company is being done, with respect to journey- men carpenters employed by the Company. A third agreement in effect, according to Talley, also by incorporation from the one-page agreement, is a form doc- ument bearing the title "Carpenters Building Construction 1972-1975 Agreement, United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Southern Colorado." It purports to have the same effective date and many of the same provisions as the document just CARPENTER'S DISTRICT COUNCIL OF SOUTHERN COLORADO 617 described, and, like that document, is neither signed nor identifies any employer-parties. Unlike the other docu- ment, however, it does not contain a no-strike clause. Respondents' Robinson testified that, in his view, there was no labor agreement between Prestress and Respon- dents at the critical time. He did admit, however, as a trus- tee of Respondents' pension, health benefit, and appren- ticeship trust funds, that Prestress made the standard contributions to those funds, and that it would have been improper for the trusts to receive those contributions un- less Prestress were signatory to "some type of written docu- ment as pertaining to trust funds." 5 B. Analysis 1. The picketing The Board's Moore Dry Dock decision 6 sets forth certain criteria for common situs picketing which, if met, create a presumption of picketing legality for purposes of Section 8(b)(4)(B). Those criteria are: 1. The picketing must be limited to times when the situs of the primary dispute is located at the premises of the secondary person. 2. The primary disputant, at the time of the picketing, must be engaged in its "normal business" at the situs, 3. The picketing must be limited to places reasonably close to the situs of the primary dispute. 4. The picketing must clearly disclose that the dispute is with the primary disputant. The General Counsel, relying mainly on the neutral Prestress' solitary presence on the site except for Leonard Pace's few brief visits, contends that the picketing of May I and 2 did not meet all of these criteria. Absence of the primary disputant from the site unquestionably is an im- portant factor. As is stated in Carpenters District Council of Milwaukee County and Vicinity of the United Brotherhood of Carpenters and Joiners of America (Farmers and Merchants Bank of Menomonee Falls), 196 NLRB 487, 490 (1972): Continued picketing at a common construction site for an extended period of time when the union knows that the primary employer is absent from the site for reasons unconnected with the picketing violates two of the Moore Dry Dock criteria; namely, that common situs picketing, to be lawful, must be limited to times when the situs of the dispute is located on the second- ary employer's premises and when the primary em- ployer is engaged in its normal operations at the site. But, absence of the primary disputant during picketing is not conclusive of the issue. Rather, the totality of circum- stances must be evaluated. As the above-quoted language indicates, for instance, the Board is likely to, find the "nor- mal business" and other criteria to be met, notwithstanding absence of the primary, when that absence is connected 5 Sec. 302 of the Act, outlawing the delivery of money and other things of with the picketing in question. See also Plumbers Local Union No. 307, AFL-CIO, (Zimmerman Plumbing and Heating), 149 NLRB 1361 (1964); International Brother- hood of Electrical Workers, Local 861 (Brownfield Electric, Inc.), 145 NLRB 1163 (1964); Local 3, International Broth- erhood of Electrical Workers AFL-CIO, (New Power Wire & Electric Corp.), 144 NLRB 1089 (1963). Other factors given weight include the duration and permanence of the ab- sence, whether the primary continued to store tools and materials at the site, whether representatives of the primary visited the site during the absence, etc. See, in addition to the cases just cited, International Brotherhood of Electrical Workers, AFL-CIO, Local 323 (Indian River Electric, Inc.), 206 NLRB 377 (1973); Local 25, International Brotherhood of Electrical Workers, (Eugene lovine, Inc.), 201 NLRB 531 (1973); International Union of Operating Engineers, Local 675 (Industrial Contracting Co.), 192 NLRB 1188 (1971); Painters District Council No. 20 (Uni-Coat Spray Painting, Inc.), 185 NLRB 930 (1970); United Steelworkers of Ameri- ca, AFL-CIO, and Local 6991 United Steelworkers of Amer- ica, AFL-CIO (Auburndale Freezer Corp.), 177 NLRB 791 (1969). In the General Counsel's favor, it cannot be said that the present picketing occasioned Pace's May 1 and 2 absence from the site. Nor did Pace store tools and materials on the site. In Respondent's favor, on the other hand, Pace previ- ously had performed work on the site and was to resume promptly upon completion by Prestress of its subcontract. Further, Leonard Pace visited the site several times May I and 2, presumably to check progress to assist him in sche- duling that resumption. The question, obviously, is close. Of the cases cited, that most in point is Local 25, Electrical Workers, supra. In that case, the primary disputant, an electrical subcontractor, worked at the site December 29 and January 3 to 7, 21, and 24. The union picketed the site December 21 to 23, 28, and 29 and January 3 to 24. Picketing thus began before the primary's first appearance on the site and occurred on a number of days that the primary was absent. On 3 of those days-December 21 and January 19 and 20-neutrals were on the site. There is no indication that the picketing occa- sioned the primary's absence on those 3 days, or that the primary then had tools or materials on the site. The prima- ry, however, was to resume work as soon as certain work by other contractors was done. The Board, reasoning that "the absence of the primary employees was plainly tempo- rary," that the primary disputant's work "remained in an uncompleted state," that the primary's work depended "upon completion of certain other basic construction work," and that neither the primary nor the union could be certain in advance when the primary would be able to re- sume work at the site, concluded that the picketing at all times comported with Moore Dry Dock. The reasoning of Eugene Iovine, Inc. seems almost equal- ly applicable to the present case. It would appear, there- fore, that Respondents' picketing satisfied the Moore Dry Dock criteria .7 But even sb, the question remains whether value from employers to unions, exempts fringe benefit contributions pur- ' Local 542, International Union of Operating Engineers (AFL-CIO) (Pad- suant to written agreement. dock Pool Bldrs ), 209 NLRB 377 (1974), and Painters District Council No 38 6 Sailors' Union of the Pacific; AFL (Moore Dry Dock Co), 92 NLRB 547 Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (1950) Continued 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there is evidence otherwise to overcome the attendant pre- sumption of picketing legality. As the Board stated in Northeastern Washington-Northern Idaho Building and Con- struction Trades Council, 152 NLRB 975, 980 (1965): While literal compliance with the standards of Moore Dry Dock may indicate the primary nature of common situs picketing, we have held that such an inference is not conclusive but may be negatived by other relevant evidence disclosing the Respondents' true objective to be to enmesh neutral employers and employees in its dispute with the primary employer. There is such evidence in the present case. Respondents disclosed an objective of enmeshing the neutral Prestress on May 1 and 2 by the totality of their fining Stanko and Turner for working behind the picket line those days; their taking pictures May 1 of the picketer standing next to Prestress's crane and of the Prestress crew at work (Build- ing & Construction Trades Council of Fond du Lac County, 168 NLRB 606, 610 (1967); and Bernard Robinson's pick- eting for over an hour early on May 2, until the regular picket arrived at the regular time. Perhaps further indica- tive of a secondary object was Respondents' failure to ask that Pace enter into negotiations or sign a labor agreement before the start of the picketing. Local Union # 469 of the United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, AFL-CIO (Hansberger Refrigeration & Electric Co.), 135 NLRB 492 (1962). It consequently must be con- cluded that the picketing on May I and 2 violated Section 8(b)(4)(i) and (ii)(B).8 (Edgewood Contracting Co), 153 NLRB 797 (1965), cited by the General Counsel in support of a contrary conclusion, are distinguishable in degree from the present case In the former, the Board concluded that the union was under a duty to ascertam if the primary was on the premises because of the predictably substantial lapse between phases of pool construction The present record does not establish any comparable predictability, rather, be- cause of variations in Prestress' speed from job to job, the contrary in Edgewood Contracting, there likewise was total predictability in the hours the primary's employees worked 8 The complaint alleges that the picketing violated Sec 8(b)(l)(A) as well as 8(b)(4)(B) Since the facts of the picketing present a classic situation cognizable under Sec. 8(b)(4)(B), it would seem doubtful that the situation would fall within the additional purview of Sec 8(b)(1)(A) Cf J L Allen Company, 199 NLRB 675 (1972), Brady-Hamilton Stevedore Company, 198 NLRB 147 (1972) Regardless, it is concluded in the present circumstances that the determination in the 8(b)(4)(B) sense is dispositive of the picketing issue for all purposes under the Act. 9 Contrary to Respondents' assertion that Respondent Local had no part in the fines, it is concluded that both Respondents were responsible. Al- though Respondent Council was the nominal forum for their assessment, jurisdiction over Stanko and Turner was based on their membership in Respondent Local, the fines derived from their failure to honor a picket line joint-ventured by both Respondents, out of charges filed by Bernard Rob- inson, an official of both , and the trial leading to the fines was held in a facility of Respondent Local Respondents' contention is without merit that consideration of the merits of the fine issues is precluded by the 6-month limitation period of Sec 10(b) The notifications of guilt and imposition of the fines, i.e, the operative facts most central to those issues, did not occur until November 27, which was well within 6 months of the charge raising the issues . See Communications Workers of America, Local 9511 (Pacific Telephone & Telegraph), 188 NLRB 433 (1971); International Association of Machinists and Aerospace Workers, AFL-CIO, et al (Union Carbide Corp), 180 NLRB 875 (1970). 10 N L R B v. Florida Power and Light Company, 417 U S 790 (1974) 2. The fines 9 8(b)(4)(B): Stanko and Turner were employed by Pres- tress, a neutral to the dispute between Respondents and Pace. Respondents nevertheless fined them for working be- hind the picket line May I and 2. By so doing, Respon- dents induced or encouraged Stanko and Turner to with- hold their services within the meaning of Section 8(b)(4)(i)(B), regardless of the legality of the underlying picketing . Carpenters and Joiners of America Local 1620 (David M. Fisher Construction Company.), 208 NLRB 94 (1975); Bricklayers and Stone Masons' Union, Local No. 8 (California Concrete Systems), 180 NLRB 43 ( 1964). See also Local 252, Sheet Metal Workers' International Associa- tion (S. L. Miller, Inc.), 166 NLRB 262 (1967), and Brick- layers and Masons Local No. 2 (Weidman Metal Masters), 166 NLRB 117 (1967). It makes no difference, for purposes of Section 8(b)(4)(B), that the disciplinary proceedings against Stanko and Turner were initiated after Prestress had fulfilled its contract with Pace on the Grand Avenue project. The "cease doing business" element of Section 8(b)(4)(B) em- braces prospective as well as existing business relation- ships, and does not require that the company-party to the primary dispute even be known at the time of the union conduct in question. Amalgamated Lithographers of Ameri- ca Local No. 17 (The Employing Lithographers), 130 NLRB 985, 990-991 (1961). The picketing on May 1 and 2 having violated Section 8(b)(4)(ii)(B), the fines , as an adjunct of the picketing, also violated that section. 8(b)(1)(A): Generally, union disciplinary action against members does not violate Section 8(b)(1)(A), because of that section's proviso that it "shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." See generally N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175 (1967). The proviso, however, does not confer upon a union unbridled license to mete out internal sanc- tions. In the present case, Turner's fine being a part of and in furtherance of Respondents' unlawful secondary boy- cott activities, there are overriding considerations. That fine accordingly violated Section 8(b)(1)(A). Carpenters and Joiners of America Local 1620 (David M. Fisher Construc- tion Co.), 208 NLRB 94 (1974). The scope of Section 8(b)(1)(A) being explicitly limited to "employees," Stanko's fine necessarily did not violate that section.10 The General Counsel additionally argues an 8(b)(l)(A) violation on the theory that a no-strike clause would have been breached had the Prestress crew honored the picket line, bringing Turner's fine within the prohibition of Local 12419 International Union of District 50, United Mine Work- ers (National Grinding Wheel Co.), 176 NLRB 628 (1969). This argument fails for the simple reason that the General Counsel failed his burden of proving the existence of such a clause. It cannot be found, from the jumble of inconclu- sive and not altogether consistent "agreements" and Talley's opinion and hearsay testimony concerning them, that a no-strike clause was in effect May l and 2.11 1 i This is not to disparage Talley's sincerity under oath , but his compe- tence to testify probatively of the existence of a no-strike clause CARPENTER'S DISTRICT COUNCIL OF SOUTHERN COLORADO 619 Robinson's admission that Prestress had to have been sig- natory to "some kind of written document" for purposes of fringe contributions does not give rise to useful inference in this regard. As the court observed in Hinson v. N.L.R.B., 428 F.2d 133, 139 (C.A. 8, 1970): The reference in Section 302(c)(5)(B) to a "written agreement with the employer" does not comprehend solely a collective bargaining agreement to the exclu- sion of any other possible written agreement. A trust fund agreement separate and apart from the collec- tive-bargaining agreement would surely satisfy the statutory prerequisite. But even accepting Talley's dubious testimony that the one-page agreement of the parent corporation, with its no- strike clause, is binding on Prestress and incorporates an- other document containing yet another no-strike clause, there is the insoluble problem of divining which of the two clauses governed the situation in question. They are mark- edly different in substance. That in the one-page docu- ment, although ambiguous, perhaps is broad enough to cover that situation. That in the latter document, however, only bars strikes in connection with contract-interpretation disputes between the contracting parties, not those in sup- port of disputes with outside parties. See International As- sociation of Machinists Lodge 284 (Morton Salt Co.), 190 NLRB 208 (1971); Washington-Baltimore Newspaper Guild 186 NLRB 877, 883-884 (1970); National Grinding Wheel Co., supra, 176 NLRB at 629-630. 8(b)(1)(B): The Supreme Court stated in N. L. R. B. v. Florida Power and Light Co., 417 U.S. 790 (1974): Both the language and the legislative history of Sec- tion 8(b)(1)(B) reflect a clearly focused congressional concern with the protection of employers in the selec- tion of representatives to engage in two particular and explicitly stated activities, namely collective bargain- ing and the adjustment of grievances. . . . The con- clusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can constitute a violation of Section 8(b)(1)(B)_only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer. Respondent's firing of Stanko, a supervisor, plainly did not come within the-prohibition of Section 8(b)(1)(B) as thus defined. That portion of the complaint consequently is without ment. CONCLUSIONS OF LAW 1. By picketing the Grand Avenue project May 1 and 2, 1973, as found herein, Respondents engaged in an unfair labor practice within the meaning of Section 8(b)(4)(1) and (ii)(B) of the Act. 2. By fining Paul Turner, as found herein, Respondents engaged in an unfair labor practice within the meaning of Section 8(b)(4)(i) and (ii)(B) and 8(b)(1)(A) of the Act. 3. By fining Lawrence Stanko, as found herein, Respon- dents engaged in an unfair labor practice within the mean- ing of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of the Act. 5. Neither of Respondents violated the Act in any other manner. REMEDY To effectuate the policies of the Act, it is'recommended that Respondents each be ordered to cease and desist from the unfair labor practices found and to take the affirmative action set forth below in the recommended Order. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER12 Carpenters District Council of Southern Colorado and its Local Union No. 362, their officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Engaging in or inducing or encouraging any individ- ual employed by Southern Colorado Prestress Company, or by any other person engaged in commerce or in an in- dustry affecting commerce, to engage in a strike or refusal in the course of his employment, to use, manufacture, pro- cess, transport, or otherwise handle or work on any arti- cles, materials, or commodities, or to refuse to perform any other services where an object thereof is to force or require Southern Colorado Prestress Company, or any other per- son, to cease using, handling, or otherwise dealing in the products of any other producer, processor, or manufactur- er, or to cease doing business with Pace Construction Com- pany. (b) Threatening, coercing, or restraining Southern Colo- rado Prestress Company, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or to require Southern Colorado Prestress Company, or any other person, to cease doing business with Pace Construction Company. (c) Fining members because said members persist in their lawful right to continue working for an employer with whom Respondents have no labor dispute. 2. Take the following affirmative action: (a) Rescind the fines they levied against Lawrence Stan- ko and Paul Turner and expunge from their records all references thereto; and so advise the International Brother- hood of Carpenters and Joiners of America. (b) Reimburse Lawrence Stanko and Paul Turner for any sums paid by them pursuant to said fines, together with interest thereon at the rate of 6 percent per annum; and advise them in writing that the fines have been res- cinded, that the records thereof have been expunged, and iZ All outstanding motions inconsistent herewith are denied In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regula- tions of the National Labor Relations Board, the findings , conclusions, rec- ommendations, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and consti- tute its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the International Brotherhood has been notified. (c) Post at their business offices and union halls in Pueblo and Colorado Springs, Colorado, copies of the at- tached notice marked "Appendix." 13 Copies of the notice on forms provided by the Regional Director for Region 27, after being duly signed by Respondents, shall be posted by Respondents immediately upon receipt thereof and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (d) Sign and mail sufficient copies of the said notice to the Regional Director for Region 27 for posting by South- ern Colorado Prestress Company and Pace Construction Company, those companies so desiring, at all locations where notices to employees are customarily posted. (e) Notify the Regional Director for Region 27, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. To the extent that the allegations of the complaint have not been sustained, they are dismissed. 13 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." either case, an object thereof is to force or require the named employer, or any other person, to cease doing business with Pace Construction Company. WE WILL NOT in any manner prohibited by Section 8(b)(4)(i)(B) of the National Labor Relations Act in- duce or encourage any individual employed by South- ern Colorado Prestress Company, or by any other per- son engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal, in the course of his employment, to use, manufacture, pro- cess, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to refuse to perform any other services, where an object thereof is to force or require the named employer, or any other person, to cease doing business with Pace Con- struction Company. WE WILL rescind the fines levied against Lawrence Stanko and Paul Turner, and expunge from our rec- ords all reference thereto; and we will advise-the Inter- national Brotherhood of Carpenters and Joiners of America of such action. WE WILL reimburse Lawrence Stanko and Paul Turner for any sums paid by them pursuant to said fines, and will notify them, in writing, that the fines against them have been rescinded, and that all entries, including any communications to the International Union, have been expunged from the records 'of the Union. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To all members of: Carpenters District Council of South- ern Colorado and its Local Union No. 362 To all employees of: Southern Colorado Prestress Compa- ny Pace Construction Company Following a hearing during which all parties were given an opportunity to present evidence and argument, it has been determined that Carpenters District Council of Southern Colorado and its Local Union No. 362 violated the law by committing certain unfair labor practices. To remedy such conduct we are required to post this notice. Carpenters District Council of Southern Colorado and its Local Union No. 362 intend to comply with this requirement and to abide by the following: WE WILL NOT fine employees or supervisors of South- ern Colorado Prestress Company because they persist in their desires to render services for the Southern Col- orado Prestress Company, an employer with whom we have no labor disputes. WE WILL NOT in any manner prohibited by Section 8(b)(4)(ii)(B) of the National Labor Relations Act threaten, coerce, or restrain Southern Colorado Pres- tress Company, or any other person engaged in com- merce or in an industry affecting commerce, where, in CARPENTERS DISTRICT COUNCIL OF SOUTHERN COLORADO AND ITS LOCAL UNION No. 362 SUPPLEMENTAL DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: I issued a decision herein on June 28, 1974, concluding, inter alia, that Respondents had not violated Section 8(b)(1)(B) of the Act by fining Lawrence Stanko, a supervisor for Southern Colorado Prestress Company (herein called Prestress), for working behind Respondents' picket line. That conclusion was grounded on Florida Power and Light Co. v. Interna- tional Brotherhood of Electrical Workers, Local 641, 417 U.S. 790 (1974). The General Counsel excepted to that conclusion, after which the Board, on January 27, 1975, issued its Order Reopening Record and Remanding Proceeding to Region- al Director for Further Hearing. After stating, among other things, that "the Board is of the opinion that the evidence before it is insufficient to permit a determination of wheth- er or not Respondent violated Section 8(b)(1)(B) by its ac- tions," the Order continued: IT IS HEREBY ORDERED that the record in this proceed- ing be, and it hereby is, reopened and that a further hearing be held before Administrative Law Judge Richard J. Boyce, for the purpose of taking evidence concerning the type of work performed by Stanko be- hind Respondent's picket line. If evidence is received tending to show that Stanko performed both supervi- CARPENTER'S DISTRICT COUNCIL OF SOUTHERN COLORADO 621 sory and rank-and-file work, evidence of the substan- tiality of each type of work performed during the peri- od of Respondent's picketing shall be taken. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Regional Director for Re- gion 27 for the purpose of arranging such further hear- ing, and that the Regional Director be, and he hereby is, authorized to issue notice thereof. IT IS FURTHER ORDERED that upon 'conclusion of such further hearing, the Administrative Law Judge shall prepare and serve upon the parties a Supplemental Decision containing findings of fact upon the evidence received, conclusions of law, and recommendations, and that following service of the Supplemental Deci- sion upon the parties, the provisions of Section 102.46 of the Board Rules and Regulations, Series 8, as amended, shall be applicable. On February 26, 1974, pursuant to the Board's order, the Regional Director issued his order rescheduling hearing; and a hearing ensued in Denver, Colorado, on March 26. The parties were permitted at the hearing to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Briefs were filed for the General Counsel and Respondents. THE ALLEGED 8(b)(1)(B) VIOLATION A. Facts Recapitulation: As more fully appears in the earlier deci- sion, Prestress was a subcontractor in the construction of an office building in Pueblo, Colorado. The general con- tractor was Pace Construction Company. Prestress had contracted to install precast concrete panels comprising the outer shell of the building, fulfilling its contract on May 1 and 2, 1973. The Prestress crew was at the site from 6:30 a.m. to 5:30 p .m. on May 1 and from 6 a.m. to 9:30 p.m. on May 2. Respondents, in aid of a dispute with Pace Con- struction, picketed the site from 8 a.m. to 4:30 p.m. on May 1 and from 6:45 a.m. to 4:30 p.m. on May 2. The Prestress crew ignored the picketing . Stanko, Prestress' erection fore- man on that crew, was both a statutory supervisor t and a member of Respondent Local. On June 13, 1973, a charge was filed with Respondent Council, alleging that Stanko had violated Respondents' constitution by working behind the picket line. A trial fol- lowed and, by letter dated November 27, 1973, Respondent Council informed Stanko that he had been found "guilty as charged" and fined $50. Facts newly developed: The Prestress crew on the job in question consisted of Stanko and four others : Paul Turner, carpenter-welder; Clarence Milberger, laborer; Orville Nance, crane operator ; and Jack Pate, crane oiler. Stanko was in charge and present at the site at all times on May 1 and 2 when the crew was there. Upon arriving at the site on May 1, Stanko studied the 1 Respondents argue in their present brief that Stanko was not a supervi- sor. This argument is rejected both because the issue was fully litigated during the original hearing and because it is outside the scope of the remand order blueprints for about 45 minutes , after which he, Turner, and Milberger collaborated for 2 or so hours in the perfor- mance of layout work-i.e., verifying measurements, that corners were square, etc. Also during this time, Stanko de- termined the placement of the crane and how much length its boom should have. The blueprint reading and Stanko's part in the layout work called upon basic carpentry skills, so were more a function of training and experience than of his status as erection foreman. The layout work completed, erection proper began. Stanko, during this phase of the job , directed the crew con- cerning the sequence of panel installation , after which he participated with the others on a team basis , installing each panel in order. The routine was such that, once Stanko had indicated which panel to install next, each crewmember knew how to proceed without further direction from him. At these times, according to Stanko , he and Turner did "basically" the same things. Stanko's other duties included establishing starting and finishing times on May 1 and 2, setting lunchtimes and coffeebreaks, keeping a record of crew hours for payroll purposes, and seeing that panels, parts, and tools were de- livered to the site in timely fashion. The recording of crew times was done by Stanko in a notebook, at the site, coinci- dent with crew quitting time. He turned in the figures, later the same evening, to a secretary at Prestress' Pueblo office. His arranging for the delivery of panels, parts, and tools was done after crew quitting time, at Prestress ' Pueblo of- fice. Stanko estimated that about 20 percent, or 4 to 5 hours, of his time on the job in question was devoted to superviso- ry functions. He included in this estimate the 2 to 3 hours of preliminary blueprint reading and layout work early on May 1, which was well along when picketing began and was of questionable supervisorial character anyway; and also the time spent after crew quitting time, all of which was after the picket's day had ended and most of which was away from the site . At no time on May I or 2 did Stanko hire or fire anyone. At no time, period, has he acted on behalf of Prestress in disciplining an employee, in griev- ance handling or in collective bargaining with any union. Stanko testified that picketing matters was not within his realm of concern as erection foreman. B. Discussion The Supreme Court stated in Florida Power and Light Co., supra, 417 U.S. at 804-805: [A] union's discipline of one of its members who is a supervisory employee can constitute a violation of Section 8(b)(1)(B) only when that discipline may ad- versely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer. [Em- phasis supplied.] As noted in Bakery and Confectionery Workers Internation- al Union of America, Local Unions 24 and 119 (Food Em- ployers Council, Inc.), 216 NLRB No. 150 (1975), the Board, in decisions construing Florida Power and Light Co., has "looked to the reasonably foreseeable effect of the 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union's discipline on the supervisor-member's performance of his Section 8(b)(1)(B) duties"; and, in so doing, has ana- lyzed "the nature and amounts of_ the work performed by the supervisor-members during the period for which the discipline was imposed." The supervisor-members in Food Employers Council had spent 40,to 50 percent of their time behind the picket line doing rank-and-file work. The Board, deeming that to be "much more than a minimal amount of rank-and-file work," concluded that their being disciplined for ignoring the picket Jine did not carry the requisit "foreseeable ef- fect" on their exercise of duties contemplated by Section 8(b)(1)(B) and dismissed the complaint. The same result obtained in Local Union No. 1959, United Brotherhood of Carpenters and Joiners of America (Aurora Modular Indus- tries), 217 NLRB No. 82 (1975), and United Brotherhood of Carpenters and Joiners of America, Local Union No. 14, AFL-CIO (Mac M. Kaplan Properties), 217 NLRB No. 13 (1975), in both of which about 50 percent of the supervisor- members' time behind the picket line had been given to rank-and-file tasks. On the other hand, in Chicago Typographical Union No. 16 (Hammond Publishers, Inc.), 216 NLRB No. 149 (1975), and New York Typographical Union No. 6 International Ty- pographical Union, AFL-CIO (Daily Racing Form, a subsid- iary of Triangle Publications, Inc.), 216 NLRB No. 147, in- volving the discipling of supervisor-members who had done little if any rank-and-file work behind the picket line, violations of Section 8(b)(I)(B) were found. In the Board's view, stated in Hammond Publishers, Inc.: [I]t is . . . reasonably likely that an adverse effect may carry over to the supervisor's performance of his 8(b)(1)(B) duties when he is disciplined after having performed substantially only supervisory functions. The present case, if anything, is stronger for dismissal of the 8(b)(1)(B) allegation than Food Employers Council, Au- rora Modular Industries, or Max M. Kaplan Properties, su- pra. Whereas the supervisor-members in those cases had devoted roughly 50 percent of their time behind the picket line to rank-and-file chores, the figure in Stanko's situa- tion, by his own dubiously conservative estimate, was 80 percent. It follows, there being neither evidence nor con- tention that he was disciplined in specific retribution for the manner in which he performed Section 8(b)(1)(B) func- tions, that Respondents' action against him was not rea- sonably likely to impair his exercise of those functions.2 Respondent therefore did not violate Section 8(b)(1)(B). CONCLUSIONS OF LAW Respondents did not violate Section 8(b)(1)(B) of the Act by fining Lawrence Stanko for working behind a pick- et line on May 1 and 2, 1973. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to the Board's afore- mentioned order of January 27, 1975, I hereby issue the following recommended: ORDERS That portion of the complaint alleging violation of Sec- tion 8(b)(1)(B) of the Act is dismissed. 2 The test being foreseeably adverse affect on the supervisor-member in his performance of 8(b)(I)(B) duties, it is irrelevant that Stanko was engaged in his usual rank-and-file functions, as opposed to struck work, and that the picketing was in aid of a dispute with an employer other than Prestress 3 All outstanding motions inconsistent with this recommended Order hereby are denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes